Politics & Policy

Washington’s Redundant Fracking Regulations

Congress has reserved that authority for states, but Democrats have elbowed in.

Today the Department of Interior announced new fracking regulations for federal and Indian lands, issuing the first nationwide federal regulations of the booming industry.

The regulations include rules about wastewater disposal, standards for well construction, and requirements for disclosure of the chemicals used in fracking fluid. But for years, states have competently overseen fracking. DOI’s redundant rules accomplish little, though they do give the federal government a new opportunity for overreach and meddling.

“This is a solution in search of a problem,” says Dan Kish, senior vice president for policy at the Institute for Energy Research. “Why would you do something if there’s no problem? And that leads to the whole issue of the federal government wanting to control everything from Washington, and they can’t do that.”

The new requirements largely seek to prevent water contamination, even though numerous credible studies — including those conducted by the federal government – have failed to find a connection between fracking itself and groundwater contamination. Even former EPA head Lisa Jackson had to repeatedly admit this, as did Department of Energy secretary Ernest Moniz.

Water contamination can occur when something goes wrong at a fracking site – for instance, when a well’s casing leaks or when a worker accidentally spills something above ground. Even so, states have already set up their own rules to ensure that energy companies operate safely and responsibly.

In the 31 states where fracking occurs or could occur, the Center for Energy and Climate Economics found that “casing and cementing depth regulations are among the most homogeneous in our study; 29 of the 31 states have some form of regulation, and one of those that does not has little or no actual drilling.” In other words, states have already established rigorous standards for well construction.

States have taken a more diverse approach to wastewater disposal. But again, the study by the Center for Energy and Climate Economics shows that states have taken this potential risk seriously, establishing rules that best meet their unique circumstances and needs.

Same with disclosure: Already, about half of the states where fracking occurs require some level of reporting.

Also, fracking fluids are far less scary than environmental activists want Americans to believe. A major study released last November by the University of Colorado Boulder found that the chemicals in fracking fluids were also used, to little fuss, in toothpaste, laxatives, detergent, and ice cream. These much-maligned “chemicals” are extremely diluted, with 99.95 percent of fracking fluid consisting of water and sand. Both a Halliburton executive and Colorado governor John Hickenlooper drank a glass of it, to no effect.

The DOI’s redundant rules also represent the federal government’s first foray into fracking regulation, even though, in 2005, Congress explicitly reserved that authority for state governments. “Because the federal government is precluded from regulating [fracking] and it’s left up to the states, [Democrats] have been looking for any door to get a federal regulation,” Kish says, adding that the Obama administration may be hoping to market the DOI’s new regulations as a national standard, pressuring states to adopt similar one-size-fits-all rules.

It’s also worth noting that the Obama administration soon plans to issue rules seeking to limit methane emissions at fracking sites. (Proposed regulations are forthcoming even though a comprehensive study from the University of Texas at Austin found that the EPA had grossly overestimated methane leaks, and that new technology developed in the private sector had succeeded in capturing 99 percent of methane emissions.)

The DOI’s new regulations are already prompting pushback. Yesterday, a group of Republican senators introduced a bill that would allow states alone to regulate fracking on federal lands. Meanwhile, the Independent Petroleum Association of America and the Western Energy Alliance promptly filed a lawsuit in Wyoming challenging the new rules.

But unless those are successful, expect oil and gas developers to continue backing away from energy production on federal lands. Already, oil production has decreased 6 percent on federal lands between 2009 and 2013 — even as it grew by 61 percent elsewhere. As it is, federal lands provide only 11 percent of the natural gas and 5 percent of the oil Americans use, the Wall Street Journal has reported.

Indian lands, also looped into these regulations, will take a big hit as well. Tribal property hosts as much as $1.5 trillion in energy resources, according to estimates by the Council of Energy Resources Tribes. But only 12 percent of that land has seen energy development.

That’s because even before the DOI’s new regulations, energy developers faced a lot of red tape on tribal lands. They had to contend with four federal agencies, and the Bureau of Land Management alone has a 49-step process before energy companies can begin constructing each oil and gas well.

DOI’s new fracking regulations will make Indian lands even less competitive, squashing a source of much-needed economic growth for a community that already grapples with staggering poverty and unemployment rates.

In a hallmark of bad policy, the federal government’s fracking regulations do harm but no good. 

— Jillian Kay Melchior writes for National Review as a Thomas L. Rhodes Fellow for the Franklin Center. She is also a senior fellow at the Independent Women’s Forum.

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